SWSG Guidance Package, Index Ref: F1

Chief Executives of Regional and Islands Councils Desk Officer 5389

Chief Executive of Unitary Authorities

Copy to: Directors of Social Work of Regional and Islands Councils

Chief Social Work Officers/Directors of Social Work of

Unitary Authorities

Chief Executives of NHS Trusts

General Managers, Health Boards

General Manager, Common Services Agency

General Manager, State Hospital

Directors of Housing

Chief Executive, Scottish Homes

Appropriate Professional and Voluntary Bodies

Association of Directors of Social Work

Convention of Scottish Local Authorities

6 February 1996

Dear Colleague

Ordinary Residence

Summary

1. This circular contains guidance on the identification of the ordinary residence of people who require social work services. The guidance is applicable not only to local authorities’ responsibilities for residential and nursing home care but also for other types of care. Section 86(1) of the Social Work (Scotland) Act 1968 sets out statutory functions with regard to the full range of accommodation, services and facilities which local authorities have a duty to provide for people "ordinarily resident" in their areas.

2. The purpose of the circular is to clarify, where responsibility lies between social work authorities and reduce the scope for disputes, benefiting both local authorities and service users. The principles set out in this circular are consistent with guidance previously issued by the Department of Health to local authorities in England and Wales (LAC(93)7). This consistency should assist the resolution of disputes between local authorities in Scotland, England and Wales.

3. Where disputes do occur, authorities should note that the provision of services for individuals requiring social work services should not be delayed because of the uncertainty about which authority is responsible, and that when an individual does not appear to have any

settled residence, it is the responsibility of the authority where the person is living at that time to arrange any care required to meet his needs. The circular sets out the procedure for referring to the Secretary of State for determination any disputes that cannot be resolved between the local authorities concerned. Nothing in the guidance affects the discretion of the Secretary of State in giving a determination.

Background

4. Section 86(1) of the 1968 Act makes reference to "ordinary residence" with regard to the statutory provisions conferring functions on a local authority in relation to the provision of social work services, including accommodation, services and facilities. The provisions are set out below:

a. Authorities have a duty to provide accommodation under section 12 of the 1968 Act, read with section 59, and under section 13A with regard to residential accommodation with nursing.

b. Authorities have a duty to provide services and facilities under Part II of the Act, under sections 12 and 14.

c. Under section 44 and subsection (5) authorities are responsible for giving effect to a supervision requirement made by a children’s hearing.

d. Authorities have a duty to provide accommodation, services and facilities for persons under sections 7 and 8 of the Mental Health Act 1984.

Meaning of "Ordinarily Resident"

5. There is no definition of "ordinarily resident" in the Acts and the term should be given its ordinary and natural meaning subject to any interpretation by the Courts. The concept of ordinary residence involves questions of fact and degree, and factors such as time, intention and continuity, each of which may be given different weight according to the context, have to be taken into account.

Case Law

6. The meaning of "ordinarily resident" or "ordinary residence" has been considered by the Courts, and regard must be had to such cases as:-

i. Shah v London Borough of Barnet (1983) Lord Scarman stated that "unless ..... it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning I unhesitatingly subscribe to the view that ‘ordinarily resident’ refers to a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration".

ii Levene v IRC (1928) Viscount Cave said that "ordinary residence" connotes residence in a place with some degree of continuity and apart from accidental or temporary absences.

7. In general, an adult with learning disabilities should be regarded as capable of forming his own intention of where he wishes to live. The case of Regina v Waltham Forest London Borough Council, ex parte Vale (1985) should be noted. In this case it was held that a person with severe learning disabilities who was totally dependent on his parents was to be treated as ordinarily resident at his parents’ address since he was in the same position as a small child who is unable to choose where to live. This case will need to be considered if there is an ordinary residence dispute involving people with severe learning disabilities but its relevance will vary in accordance with the ability of the person with learning disabilities to make choices and the extent to which he relies upon his parents. In some cases some other person(s), or body, may be acting in place of their parents. In a decision of the High Court in December 1992 London Borough of Redbridge ex parte East Sussex County Council, the principles outlined in Vale were applied where the parents of young adult twins with learning disabilities who had been ordinarily resident in Redbridge left this country to live in Nigeria. Soon after the parents departure the residential school in East Sussex attended by the twins closed. At this point the twins were held by the court to have no settled residence. As they were in the area of East Sussex it was held that no duty to provide for them fell on Redbridge as they were not ordinarily resident there, but that there was a duty to make provision under the relevant legislation on East Sussex as they were in that county and had no settled residence.

Determination by the Secretary of State

8. Section 86(2) of the Social Work (Scotland) Act 1968 gives the Secretary of State the responsibility to determine disputes about ordinary residence where such disputes arise between local authorities and the authorities concerned cannot resolve the issue themselves. A determination by the Secretary of State should only be sought as a last resort and local authorities are expected normally to resolve disputes themselves. Authorities seeking a determination from the Secretary of State must indicate why the dispute cannot be resolved in terms of this guidance. (See paragraphs 26-32).

GENERAL GUIDANCE ABOUT PROCEDURES

Responsibility for Assessment

9. Local authorities have a duty under Section 12A of the 1968 Act to undertake a care assessment where it appears to the authority that any person for whom they may provide or arrange community care services may be in need of services. However authorities also have a duty under Section 4(a) of the Disabled Persons (Services, Consultation and Representations) Act 1986 to decide on request whether the needs of a disabled person call for the provision of welfare services under Section 29 of the Chronically Sick and Disabled Persons Act 1970 which is taken as provision under section 12 of the 1968 Act. Authorities should be sensitive to the preferred choice of services by people so assessed and should be aware of their duty to comply with the guidance contained in Scottish Office Circular SW05/93 and the Social Work (Scotland) Act 1968 (Choice of Accommodation) Directions 1993. Identification of an individual’s ordinary residence should not restrict his right to be accommodated or receive services in another area.

10. While a person may be "ordinarily resident" in the area of another local authority it is the responsibility of the local authority of the moment to make a care assessment if it appears to the authority that he may be in need of services. For example an urgent need might arise in the case of someone ordinarily resident elsewhere who is visiting or on holiday. The local authority where the person is ordinarily resident can arrange for the assessment and the provision of services to be carried out on its behalf by the local authority of the moment. A person who arrives in a local authority’s area from abroad (including for example a person returning to this country after a period when he has been resident abroad and who had given up his previous home here) who appears to the authority to be in need of social work assistance may be ordinarily resident in the area of another authority. If the person is not ordinarily resident in any other authority then it is the local authority of the moment that should carry out the care assessment. If there is a dispute about the ordinary residence of a person in need of services it should be debated after the care assessment and any provision of service. The undertaking of an assessment and the provision of services by an authority under such circumstances should not be taken to imply acceptance of the individual’s ordinary residence in that area.

People Who Are Placed in Accommodation in the Area of Another Local Authority

11. Where, following an assessment, a local authority arranges a placement in a private or voluntary home in another authority’s area or in a home provided by another local authority the placing authority will normally retain for that person the same responsibility that it has for someone living in its own area. The person so placed will not as a general rule become ordinarily resident in the other local authority’s area. If the person subsequently moves, without local authority involvement, he will usually become ordinarily resident in the area of the local authority where he has chosen to live.

12. A local authority should not place a person for whom they are financially responsible in accommodation provided by a private proprietor or a voluntary organisation in the area of another authority without informing the other authority. Where the person is being placed on a permanent basis and has an assessed health need, community health services in the area should be informed. The placing authority should also ensure that satisfactory arrangements are made before placement for any necessary support services, such as day care, and for periodic reviews, and that there are clear agreements about the financing for all aspects of the individual’s care. The local authority responsible for the placement may negotiate for these services to be provided by the host authority and reimburse the costs. It is for the placing authority to determine, with reference to Government guidance, the level of charges, if any, which the service user will pay. Except in an emergency situation, no host local authority should alter the accommodation or services provided for that person to a significant degree without consulting in advance the responsible local authority. It is recognised that there will be some circumstances where an urgent placement is necessary, and prior consultation will not be possible. In such cases the necessary consultation should take place immediately after the placement has been made.

13. Good record keeping will be essential, including recording oral agreements and confirming these with written agreements. When a care manager has been appointed he should usually be the main link between the responsible and host authorities. All changes should be confirmed and recorded in writing at the regular review of each individual’s needs.

People who Move to Residential Accommodation of their own Volition

14. When an individual arranges to go into permanent residential or nursing home care in a new area, without any local authority having taken responsibility for the arrangements, he becomes ordinarily resident in the new area. If subsequently social work help is sought the person will look to the authority where the residential accommodation is situated. The local authority in the original area may become aware of the arrangements the individual is making and, with the permission of the person concerned, they may inform the local authority for the new area, particularly if it seems possible that social work help may later be required.

People Whose Accommodation is Partly Financed by a Health Board or NHS Trust

15. Purchasers of NHS health care might negotiate with local authorities to provide finance in respect of a person moving from long-stay hospitals to care accommodation including supported accommodation, in the community (see Scottish Office Circular - "Community Care: Joint Purchasing, Resource Transfer and Contracting: Arrangements for Inter-Agency Working" (NHS MEL(1992)55)). This might take the form of joint financial arrangements between the health board and the local authority (the local authority of ordinary residence and/or the local authority where the individual is to be settled). Funding may be provided to a particular local authority for a number of individuals regardless of their original ‘ordinary residence’. In entering into such agreements local authorities must be clear about the responsibilities they entail. Such agreements should always be recorded clearly in writing. They should include a statement recording the ordinary residence of each individual concerned so that the question of future financial responsibility is addressed.

Discharge from Hospital, Nursing Homes, Prison and other Similar Establishments

16. Patients in an NHS hospital or NHS trust hospital could be deemed to be ordinarily resident in the area in which they were ordinarily resident before being admitted to hospital. If they were not ordinarily resident in any area prior to their admission, then the local authority of the moment would have responsibility. Local authorities should apply this approach reasonably when considering responsibility for people leaving prisons, resettlement units and other similar establishments without a permanent place to live who will require social work involvement at the time of their discharge. No case law exists however, and any dispute must be resolved in the light of the specific circumstances.

People with ‘Preserved Rights’

17. A person who, without the involvement of a social work department, has become a permanent resident in an independent nursing home or residential care home, meeting the costs from private resources (including any Income Support entitlement), is regarded as ordinarily resident in the area where the establishment is located. However, the extent to which social work help, in the form of residential accommodation, may be made available to such a resident who has preserved rights to the higher levels of Income Support will be affected by the limitations and exemptions set out in Scottish Office Circular SW11/1993.

Homelessness Legislation

18. The test of "ordinary residence" is not the same as that of "local connection" used in the homelessness legislation for establishing which housing authority has the responsibility for securing accommodation for unintentionally homeless applicants in priority need. For a person in urgent need, the social work department of the moment cannot argue that the possible existence of a "local connection" elsewhere excuses it from the duty to assess and provide any necessary social work services; decisions on where the responsibility for the funding of such services rests, based on ordinary residence, should be decided subsequently. Rules for determining responsibility under Housing Acts should not be used to identify ordinary residence for social work purposes. Any outstanding ordinary residence questions should be clearly recorded in social work records at the time they arise. Failure to do this may prejudice subsequent consideration.

19. "Local connection" for housing purposes (defined in section 27 of the Housing (Scotland) Act 1987, and discussed further in the Homelessness Code of Guidance) may be established by present or past settled residence in an area, by employment in that area, by family connections, or other special circumstances. Where the test of "local connection" results in the transfer of responsibility for securing accommodation to another housing authority, the social work department will wish to consider where "ordinary residence" then rests. The homelessness legislation provides that, where a person has no local connection, the duties to provide accommodation rest with the housing authority to whom he first applies. Even if a housing authority suspects that a person may have a local connection elsewhere, this does not absolve it from an initial duty to provide temporary accommodation if the immediate circumstances require it, pending the transfer of responsibility to another housing authority. Any dispute between authorities will be determined by agreement between them according to the procedures adopted by COSLA. Copies of the "Agreement on Procedures for Referrals of the Homeless" are available from the Convention of Scottish Local Authorities, Rosebery House, 9 Haymarket Terrace, Edinburgh, EH12 5XZ (Telephone: 0131 346 1222).

Responsible Health Board for People Needing Health Care

20. The responsible health authority is the one where a person is usually resident. The NHS Scotland - the Function of Health Boards (Scotland) Order 1991, sets out the means by which a patient’s area of residence should be determined. For the majority of cases the arbiter of the patient’s residence is the patient himself. If there is any doubt about where a person is usually resident, he is to be treated as usually resident at the address which he gives as being where he usually resides. If the patient is unable to give an address at which he considers himself resident, then the address at which he was last resident will establish the district of residence. In the very small number of cases where the position is still not clear, the Regulations provide that the patient should be treated as usually resident in the health district in which he is present, which means where he is found to be in need of treatment by the provider. It follows from this that in the majority of cases the area of ordinary residence for social services care and the area where a person needing health care is usually resident will be the same.

Identifying Health Board Responsible for Providing Health Services to Residents in Homes

21. In organising a placement in a residential care or nursing home, local authorities, Health Boards and NHS Trusts should liaise in securing the provision of community services. This liaison should involve the health authority of usual residence. A local authority may place someone in a residential care or nursing home outside the health board of usual residence. If the move to the residential care or nursing home is permanent, then the health board for the residential care or nursing home would become the health authority of usual residence for the residents of the home, and responsible for providing the appropriate health services for the residents, ie the local authority should liaise with the "new" health board. If people are placed in a home for a temporary period, they remain usually resident in their own health authority. NHS Circulars Numbers 1989(GEN) 39 and SHHD/DGM(1991)(67) provide guidance to Health Boards about the entitlement of patients in private nursing homes to NHS supplies and services.

Young Adults

22. In the case of young people who cease to be cared for under the Social Work (Scotland) Act 1968 and sections 7 and 8 of the Mental Health (Scotland) Act 1984 on reaching the age of 18 years, authorities should agree where responsibility for the future delivery of services might most appropriately lie. Section 24 of the 1968 Act refers to local authorities’ powers with regard to young people who are under 21 years old who have, at any time since ceasing to be of school age, been in the care of a local authority. Where such a young person is engaged in education, training, employment or the search for employment in an area Section 24 provides for any local authority to contribute towards the costs of the young person’s accommodation and maintenance in that area.

In considering a person’s place of ordinary residence, Section 86(3) of the 1968 Act provides that any period in which a child lives in any place -

a. where he was a patient in a hospital (including NHS Trusts);

b. where he was an inmate of a school or other institution;

c. in accordance with the requirements of a supervision order or probation order or the condition of a recognisance or while boarded out under the 1968 Act or the Child Care Act 1980 or the Children and Young Persons (Scotland) Act 1937 by a local authority or education authority.

shall be disregarded in determining the "ordinary residence" of the child.

Aftercare Under The Mental Health (Scotland) Act 1984

23. Section 8 of the Mental Health (Scotland) Act 1984 places a duty on local authorities to co-operate with health boards and the independent care sector to provide aftercare for people who are or have been suffering mental disorder.

24. From 1 April 1992 health boards were required to initiate, in collaboration with local social work departments, explicit individually tailored care programmes for all in-patients about to be discharged from mental illness hospitals and all new patients accepted by the specialist psychiatric services. The care programme approach follows good professional practice. The essence of the approach is that the needs of each patient, both for continuing health and social care and for accommodation, are systematically assessed and that the appropriate arrangements are made. These include the appointment of a key worker to keep in close touch with the patient and to monitor that the agreed health and social care is given.

25. The Secretary of State’s powers to determine disputes under Section 86(2) of the 1968 Act do not extend to any disputes regarding residence which may arise under the Mental Health (Scotland) Act 1984. However, Scottish Office Circular SOHHD DGM1992/9 (SW/1992/1) gives guidance on some of the key issues to be addressed in implementing the care programme approach.

DETERMINATION OF DISPUTES BY SECRETARY OF STATE

26. Section 86(2) of the Social Work (Scotland) Act 1968 provides that any question arising as to the ordinary residence of a person shall be determined by the Secretary of State. This relates to the provision by a local authority of accommodation, services, facilities and other matters to a person ordinarily resident in the area of another local authority, as described in section 86(1) of the Act. Section 97(1) of the 1968 Act extends the provision of section 86(1), providing for the Secretary of State to determine disputes between Scottish local authorities and those in England and Wales. Separate guidance has been issued to local authorities in England and Wales by the Department of Health (LAC(93)7).

27. Nothing contained in this guidance is to be taken to affect the discretion of the Secretary of State in giving a determination. Each case has to be considered in the light of its own facts. The Secretary of State’s decision is final subject only to judicial review.

Procedures prior to seeking a Determination

28. Where disputes arise regarding the ordinary residence of individuals who may require social work services the local authority of the moment should accept interim responsibility.

29. The procedures set out below should be followed with a view to reaching agreement without reference of the case for determination by the Secretary of State:

(i) Operational management of the authorities involved should make every effort to reach agreement in accordance with the principles set out in this guidance.

(ii) If agreement is not reached at operational level, legal advice should be sought and senior management in the relevant authorities should seek to agree responsibility.

(iii) If agreement is still not reached, all relevant papers, including legal advice, should be referred to the Directors of Social Work or Chief Social Work Officers of the authorities involved to seek agreement.

Efforts should be made to resolve disputes as quickly as possible and unnecessary delays should be avoided in each of the stages set out above. Only once these procedures have been exhausted should a determination be sought from the Secretary of State.

Procedures for seeking a Determination

30. An agreed written statement of facts, signed by all the authorities involved, must be sent, together with the application for a determination. This agreed statement should be as detailed as possible, including (i) full information about the person to whom the services have been supplied; (ii) details relating to the prior residence of the person to whom services are provided; (iii) details of the statutory provisions under which services have been provided. Copies of all relevant correspondence between the authorities concerned should be annexed to the agreed statement and should clearly identify when the existence of a dispute was identified by the local authorities involved and the time taken to complete each of the stages set out in paragraph 29.

31. Each local authority may additionally provide separate written representations concerning the agreed statement, including for example a legal submission.

32. The agreed statement of facts , with any annexed documentation, and separate written representations should be sent to Social Work Services Group Division 2.

ENQUIRIES

33. All enquiries about this guidance should be directed to Mr Neil Rennick, Room 48C James Craig Walk, Edinburgh, (Tel: 0131 244 5389).

Yours sincerely

GAVIN ANDERSON